The hot story in copyright this week is about Wikimedia (Wikipedia) refusing repeated takedown requests by a photographer because Wikimedia claims that no one owns the copyright to the image. And why does no one own this image? Because a monkey pushed the button on the camera.
What’s at issue in the story is that, because the monkey pushed the button on the camera, Wikimedia claims that the monkey should own the copyright. But since animals can’t own copyrights, Wikimedia concludes that no one can own the copyright, so the picture must immediately go into the public domain:
In an interview, Wikimedia Foundation’s Chief Communications Officer Katherine Maher said the organization is confident that the legal basis for denying Slater’s request is sound, because the person that takes the photo should own the copyright. But a person didn’t take this one.
It’s a convenient argument for Wikimedia, and it fits with their generally disdainful attitude toward copyright. And while everyone is focusing on the technical question of whether authorship is determined by who pushed the button on the camera, that really isn’t the big picture issue.
The real issue here is the low view of creativity that the CopyLeft has. I'm referring to the “everything is really a derivative work,” or “everything is really just a remix” arguments. According to them, in the monkey story, apparently the only creative act in the entire process was the pushing of a button, which really isn't much if you think about it. It's almost random from their point of view.
But, of course, that wasn’t the only creative act. An enormous number of factors converged that resulted in that act of creativity, including the photographer’s inspiration to head into the jungle, his choice of location, his selection of equipment, film and lenses, his research into locations and the proper time of day—to say nothing of his selection of images and his recognition of the greatness of the resulting photograph, his developing of the photograph, and his promotion of the photograph.
In other words, ALL the factors that went into the creation of this photograph were acts of the photographer—except for simply pushing the button on the camera. That was serendipity.
But there’s often a dash of serendipity in a work of beauty. The light just happens to change just as a photographer is pushing the button, or an accident in the recording studio results in a more compelling take. There are eureka moments in scientific discovery as well, but we don’t take patent ownership away from an inventor just because he or she was pleasantly surprised by some unexpected development. In fact, recognition of the benefit is a key part of the genius of invention, just as it is of creativity.
Would the photo have existed if the photographer had not taken all the other steps that occurred both before and after the button was pushed? No, of course not. But in the process there was a dash of serendipity which resulted in beauty. That should not deprive the photographer of the credit and ownership, especially because he openly shared the serendipitous story with the world. And it certainly shouldn’t mean that Wikimedia is free to give people free, uncredited and uncompensated access to the photo.
This comes down to a clash between our traditionally high view of creativity, and the new low, almost nihilistic view of creativity being urged upon us by the CopyLeft. It’s just a way of justifying piracy and theft—we aren’t really doing anything wrong, because there really isn’t anything special about creativity in the first place.
Tell that to the photographer, who journeyed to Indonesia and undertook all of the preparation and expense of the journey explicitly to get a photo like this, and who now is having the result of his work and creativity taken from him for nothing.